first safe harbor for OSPs set forth in Section 512(a)(1) of the Digital Millennium Copyright
Act,^74 discussed in detail in Section III.C below.
(b) The MAPHIA CaseAnother well known case, Sega Enterprises Ltd. v. MAPHIA,^75 adopted the logic of the
Netcom case and refused to hold a BBS and its system operator directly liable for the uploading
and downloading of unauthorized copies of Sega’s video games, even though the defendants
participated in encouraging the unauthorized copying, which was not true in Netcom. (As
discussed below, the court did, however, find contributory liability.) The evidence established
that the system operator had knowledge that the infringing activity was going on through the
bulletin board, and indeed that he had specifically solicited the uploading of the games for
downloading by users of the bulletin board.^76 The system operator also sold video game
“copiers,” known as “Super Magic Drives,” through the MAPHIA BBS, which enabled
subscribers to the BBS to play games which had been downloaded from the BBS.^77
In granting a motion by Sega seeking summary judgment and a permanent injunction, the
court refused to impose direct liability for copyright infringement on the BBS and its system
operator, Chad Sherman. The court cited the Netcom case for the proposition that, although
copyright is a strict liability statute, there should be some element of volition or causation which
is lacking where a defendant’s system is merely used to create a copy by a third party.^78 The
court further stated:
While Sherman’s actions in this case are more participatory than those of the
defendants in Netcom, the Court finds Netcom persuasive. Sega has not shown
that Sherman himself uploaded or downloaded the files, or directly caused such
uploading or downloading to occur. The most Sega has shown is that Sherman
operated his BBS, that he knew infringing activity was occurring, and that he
solicited others to upload games. However, whether Sherman knew his BBS
users were infringing on Sega’s copyright, or encouraged them to do so, has no
bearing on whether Sherman directly caused the copying to occur. Furthermore,
Sherman’s actions as a BBS operator and copier seller are more appropriately
analyzed under contributory or vicarious liability theories. Therefore, because(^74) H.R. Rep. No. 105-551 Part 1, at 11, 24 (1998).
(^75) 948 F. Supp. 923 (N.D. Cal. 1996).
(^76) Id. at 928.
(^77) Id. at 929. The Super Magic Drive consisted of a connector which plugged into the video game console, a
receptacle which accepted video game cartridges, a main unit having a RAM to store games, and a floppy disk
drive. “A MAPHIA BBS user can download video programs through his or her computer onto a floppy disk
and make copies with his or her computer or play those game programs through the adaptor drive. To play a
downloaded game, the user places the floppy disk into the video game copier. The user can choose the ‘run
program’ option and run the video game program from the floppy disk without a video game cartridge. The
adaptor drive also allows the user to copy the contents of a game cartridge onto a floppy disk.”Id.
(^78) Id. at 932.